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New York City Council to hold hearing on proposed resolution calling on the NYS legislature to enact a medical marijuana law

The New York City Council Committee on Mental Health, Mental Retardation, Alcoholism, Drug Abuse and Disability Services, jointly with the Subcommittee on Drug Abuse will hold a hearing on Friday, November 18, 2011 at 10:00 a.m. in the 16th Floor Committee Room, 250 Broadway, New York, NY to consider Proposed Res. No. 94-A, a resolution calling upon the New York State Legislature to pass A.7347/S.2774, legislation that would legalize the medicinal use of marijuana.

Here is the text of the resolution:

Proposed Res. No. 94-A

Resolution calling upon the New York State Legislature to pass A.7347/S.2774, legislation that would legalize the medicinal use of marijuana.

Whereas, Marijuana refers to all parts of the plant Cannabis sativa L.; and

Whereas, The primary active ingredient in marijuana is THC (delta-9-tetrahydrocannabinol), which reacts to nerve cells in the brain and leads to a euphoric high that users generally experience when smoking marijuana; and

Whereas, Proponents of medical marijuana point to a large body of reports and journal articles that support the therapeutic value of marijuana; and

Whereas, These written works address the ability of marijuana in the treatment of a variety of disease-related problems, including relieving nausea, increasing appetite, reducing muscle spasms and spasticity, relieving chronic pain, reducing intraocular pressure, and relieving anxiety; and

Whereas, Nationally, 16 states, Alaska, Arizona, California, Colorado, Delaware, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia, have enacted laws or passed ballot measures which have authorized the use of medical marijuana; and

Whereas, On October 19, 2009, the United States Department of Justice issued formal guidelines for federal prosecutors in states that have enacted medical marijuana laws; and

Whereas, The guidelines contain in pertinent part that, “[p]riorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana;” and

Whereas, Marijuana remains a Schedule I substance under the Controlled Substances Act and the United States Drug Enforcement Association asserts that this classification means that marijuana has a high potential for abuse, currently has no accepted medical use in treatment, and lacks accepted safety for use of the drug or other substance under medical supervision; and

Whereas, Yet, advocates of medical marijuana laws view the Department of Justice’s policy as an important acknowledgement that patients and medical professionals should not fear prosecution as a result of adhering to state law; and

Whereas, However, some advocates are concerned that recent action taken by the Department of Justice against medical marijuana dispensaries in California will threaten individuals engaging in the medicinal use of marijuana throughout the country; and

Whereas, In New York State, Assembly Member Richard Gottfried and Senator Thomas Duane introduced A.7347/S.2774, legislation that would legalize the medicinal use of marijuana; and

Whereas, This legislation would accomplish this task by legalizing the possession, manufacture, use, delivery, transfer, transport or administration of marijuana by a certified patient or designated caregiver for certified use; and

Whereas, The bills also create procedures for allowing practitioner’s to certify that their patients’ serious medical condition should be treated by the medical use of marijuana; and

Whereas, Pursuant to the legislation, the New York State Department of Health is required to monitor the use of medical marijuana, promulgate rules and regulations for registry identification cards and provide reports to the Governor and the Legislature on the medical use of marijuana; and

Whereas, Multiple public health and advocacy organizations support this legislation including the Medical Society of the State of New York, the New York State Nurses Association, the Hospice and Palliative Care Association of New York, the New York Statewide Senior Action Council and the Gay Men’s Health Crisis; now, therefore, be it

Resolved, That the Council of the City of New York calls upon the New York State Legislature to pass A.7347/S.2774, legislation that would legalize the medicinal use of marijuana.

My comments:

I am happy to see this initiative on the part of the City Council and I am greatly looking forward to attending the hearing.

However.I note with … curiosity … the jump, without further analysis, in the resolution from (a) the reference to the “Ogden Memo” from October 2009 that deprioritized enforcement of marijuana laws against individuals whose actions are in compliance with medical marijuana laws to (b) the oblique reference to “recent action taken by the Department of Justice against medical marijuana dispensaries in California.”

The situation, according to all reports I have seen, is that the federal government has begun an all-out assault on the California medical marijuana movement. One aspect is the tactic by the IRS to deny medical marijuana businesses, especially Harborside Consulting, the ability to deduct expenses incurred in the course of their operations. [I have read about this issue only in passing and have not studied it in any depth, so my comment does not purport to be overly authoritative.] Another is the increase in DEA raids in California. The key issue for our purposes is the series of threats by US Attorneys that state officers who participate in medical marijuana programs will be in violation of federal law and subject to criminal penalties.

That latter one is the bigger issue and should be the focus of the City Council.

I must revisit the situation in NJ which I described in early posts. I would lay this whole situation at the feet of Chris Christie, since, I believe, he was the one who triggered this backlash by the feds – by trying to kill the NJ medical marijuana program in various ways – including the proposal that Rutgers University cultivate all of the cannabis to be supplied, thus completely undermining the supply side which the statute provided, that being a set of dispensaries. Of course Rutgers publicly stated that it could not do so because it would jeopardize its federal funding. Obviously. What we have, then, is the public recognition that the feds have numerous mechanisms for stopping medical cannabis, including threats to state officials. What else? The feds will deny funding of highway construction to any state that implements a medical marijuana program?

I always, always thought that the Ogden Memo of October 2009 was thin ice and wildly overestimated – because it never went to the roots of federal prohibition. It is the mildest of mild: it is a suggestion about what prosecutors should prioritize. In fact, it is loaded with disclaimers that it creates no rights or defenses.

Now, I do note a fascinating argument which Dave Holland made to the effect that the Ogden Memo implicitly upended Schedule I classification – because it deferred to state law recognizing a medical use of cannabis. Brilliant argument, Dave, keying right off of the “currently accepted medical use in treatment” prong of Schedule I classification, which has been the source of most if not all human suffering since 1970. It is genius because it connects directly to the theory which Buford Terrell discusses to the effect that since the practice of medicine is a matter reserved to the states the feds have no authority to reject determinations by the states as to what constitutes a valid medical treatment; see also Carl Olsen’s petition in Iowa. Last I heard, however, the District Court Judge presiding in Dave’s case denied his motion to dismiss the indictment without comment.

I would propose something different: a resolution by the City Council directed to the President of the United States and the US Attorney General calling upon them (a) to direct the DEA Administrator to stop raiding medical marijuana dispensaries, (b) to direct the US Attorneys in the states with medical marijuana programs not to threaten action against state officers implementing medical marijuana programs and (c) to clarify the meaning of the “medical use” prong of Schedule I classification. Then the resolution can call upon the NYS legislature to make a similar demand – and enact a medical marijuana law. The Council could also call upon the DEA to license Dr. Lyle Craker of the University of Massachusetts as a “bulk manufacturer” of cannabis for use in a clinical trial of cannabis to be conducted by Dr. Donald Abrams – i.e. breaking the monopoly held by the National Institute of Drug Abuse as the sole legal supplier of cannabis in the US.

I might even demand that the United States government cease attempting to determine what constitutes medical treatment. (I intend to post more on this issue, which I consider the key to … everything.)

Hmm. I guess what I am saying is that if the City Council is going so far as to endorse the enactment of a NYS state medical marijuana law – which is a stupendous and highly commendable development – the Council should also reference the broader context of federal intransigence and hostility that forced the creation of populist state-based medical cannabis movements – and demand an end to that conduct.

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